A The Foundation for Thought and Ethics is
organized to promote freedom of choice for young people in the
classroom, especially as it pertains to matters of world view and
philosophy and character and the like.

A Well, because in order to really make
independent reps who are out making contacts with teachers
productive, you have to have a pipeline of product. And as we --
at this point we don't have as much product as the average
publisher does, so we have to produce more product which would be
text -- supplemental textbooks and teachers guides and
peripherals that make them attractive and easy to use for the
teachers. And as we do that, as we accomplish that, then we'll
have more reps and be able to contact more schools.

Q Okay. Is the Foundation for Thought and Ethics a
religious organization?

A A basal textbook is a textbook that's designed
to cover all the material in a course. Each state has its
required benchmarks, if you will, of what has to be covered in
American History, what has to be covered in biology, et cetera,
and so a basal textbook is going to fare on the market in that
state according to how much -- if it has a large percentage or
all of those benchmarks so that the teacher can use that basal
textbook and be fulfilling his responsibility.

Q And how would a supplemental textbook like
Pandas and People be used in that curriculum?

A Well, the layout of Pandas and People is --
follows the -- topically follows the basal textbook. So we would
like for our book to be used during the entire course, but
practically speaking many people, many teachers will take it and
use it for say a two week period. So it's flexible.

Q And what is the rationale for Pandas and People;
what is the -- why is it different?

A Well, it's different because it presents the
view of intelligent design. And the view of intelligent design is
that -- it's the view that intelligent cause, which is so at home
in various branches of science, examples would be the search for
extraterrestrial intelligence, forensic science, archeology, in
all of these branches of science we're very much at home in
searching for, recognizing and having confidence that we can
identify the product of intelligence.

Now, it's taking that same -- that same kind of
confidence and that same purpose and looking, for example, in
biology. When we look at biological organisms and especially
their genomes, we recognize the same intelligent cause. And
because we extend a uniform application of the principles of
science, there's good warrant to say that this intelligent --
this designed entity is the product of intelligence. So it's a
plausible warranted hypothesis when we look at the information
that we see.

Q Now, prior to deciding to engage in the product
that resulted in Pandas and People, did you do any marketing
studies or any studies for secondary schools?

A Yes, in fact, while we were doing our first book
prior to Pandas, we engaged a professor actually who was a former
professor of anthropology on a doctoral level at SMU, Southern
Methodist University, who had a polling business. And we engaged
him, he was a Darwinist, we met with him and discussed questions
and let him take our questions and re-express them, and then
conducted a poll. And the results were all turned over to him and
he used the computer center at SMU to draw a large number of
correlations. And it showed a very strong, a very high percentage
of interest among biology teachers -- this was all biology
teachers -- in having textbook or curricular help and assistance
in teaching a hypothesis that was an alternative to Darwin's.

And it also asked the question, if there is a
dominant hypothesis and a secondary hypothesis, which should you
teach. And the options given to the teachers were, just teach
your personal viewpoint, teach the dominant hypothesis and the
secondary hypothesis, or teach the secondary hypothesis, teach
the dominant hypothesis. The overwhelming majority said teach
both, 70 some percent.

Q The individual who conducted this study for you,
was he a Christian?

A So the authors of the book were P. William
Davis, who had authored -- previously co-authored books -- major
books of biology with McGraw-Hill and W. B. Saunders in his book
with Claude Villee, published by W. B. Saunders is the best
selling, most widely used college level biology major's major
textbook in the world.

And then Dean Kenyon was the other co-author. And
Dr. Kenyon was the co-author of the best selling book on the
origin of life prior to our book, previous, the book before
Pandas. And it also was a McGraw-Hill title, and it was called
Biochemical Predestination. And Dr. Kenyon was recognized as one
of the top, you know, five or ten origin of life researchers in
the world.

Q So this book was written by individuals who were
biologists by profession?

A Oh no. No, we sent it to -- we sent it to people
who we had reason to believe might be receptive or in agreement.
We sent it to people who we knew were not -- would not be
receptive to it. We sent it to people because of their academic
credentials in a variety of sciences. It was an extensive
project, certainly lasted over a year, working -- just working in
terms of the input of the peer review.

Q And what did you do then when you got the
results of the peer review?

A We would take -- the peer review informed (sic)
the final edit of the book in a very serious -- to a very serious
degree.

A Well, the average price over that lifetime has
been -- the average discounted selling price, not the retail, has
been between 12 and $13. But presently the current print run is
-- the price was adjusted, the retail is 24.50. So the average
selling price in this case is 16.22.

A We certainly hope so. No publisher, you know,
anticipates or wants to stop at, you know, the first print run,
especially if it's a small one like that. So of course we hope
that there will be many print runs like Pandas before it, and
anticipate that, but, you know, in terms of our fiscal
responsibility, we have to be conservative and do a small print
run.

Q Are Pandas and People and The Design of Life
both based upon the rationale of intelligent design?

Q How would a judicial determination equating
intelligent design to religion affect the sale Of Pandas and
People and The Design of Life?

A Oh, it would be -- it would be catastrophic for
the sales. It would be -- would make that book radioactive. The
teachers would not buy it. It would not be used in the classroom.
The market for which the book is being prepared would just
effectively evaporate.

Q And the market for who the book is prepared,
where is that, what is that market?

A That market is in high school biology classes,
AP biology classes, and in some introductory level biology in
college.

Q How would a decision affecting the sale of that
book affect FTE -- or those books affect FTE?

A Well, we're several years into the process of
preparing this book. It would be a dramatic blow to FTE and could
go to our viability -- probably would, because we've been working
since 1998 to develop this book. We've involved a lot of, a lot
of scientists. And in addition to the economic hit that it would
provide for us, it would be a very scary experience for other
authors that we might approach in the future to ask them to write
for us, to see what's happened to this book.

Q And what would the total figures that you've
calculated for loss be, just from -- through the first printing
of Design of Life?

A The revenues for the first printing of The
Design of Life would be 310,000 plus some.

Q And when you add that to the other costs that
you have, or expenses you have, what would the total loss be?

A Well, we have, as I say, 1300 -- roughly 1300
copies of Pandas presently which are selling at 19 -- let's see,
19.16, excuse me. And then the next print run of Pandas will sell
at a little bit more. So the combined present remainder of the
present print run and the next print run together would total
$213,000 in revenues, projected revenues. And then when you add
that to the 300 plus thousand dollars, $310,000 for The Design of
Life, we're talking now 524,000.

A Intelligent design is the view that, just as
intelligent causes are well accepted in branches of science, and
I mentioned this a while ago, that forensic science and the
search for extraterrestrial intelligence or SETI, and you might
picture the Arecibo Observatory in the movie Contact that was
about Carl Sagan's work and so forth, those were the implements,
the tools of SETI, as well as in archeology.

These branches of science are very accustomed to
and comfortable with the assignment to identify the product of
intelligent design. And so if we take that same rationale and we
start with the observation that in biological organisms, in the
genome, there is dramatically highly organized, mathematically
highly improbable organization along the spine of the DN A
molecule, so that the genome as a whole is something that defies,
that boggles our mind. So this would be I think a good starting
place for the definition of intelligent design.

Q Would you say that the coding of things is
evidence of intelligence?

A Yes, I would. I would -- I'm not sure if this is
admissible or not, but recently in the press it was widely
reported that the famous British Atheist Anthony Flew, throughout
a lifetime of advocating atheism, he had been to a symposium in
Dallas in 1985. He had been in touch with intelligent design
scientists, read several of them, and he had -- he came out in
the press, I think it was in December, and he said this. He said
a lot of my friends are going to be very angry with me that I'm
doing this, but he said, I've always said that you follow the
evidence wherever it leads, and that's what I'm doing. And he put
his finger on the central argument of intelligent design, that DN
A molecule, and the highly unexpected improbable arrangement of
the coding of the codon on the DN A spine. And he said that is --
that persuades me. He won't say that the agent, the intelligent
agent is even personal, and he doesn't accept the God of the
Bible, he doesn't accept the God of the Koran, but he says, it is
inescapable to me. And so he's changed, as an 81 year old man,
he's thrown out his atheism.

Q Now, you say that the theory originates, or the
rationale originates with scientific observation.

A Yes, it does, it originates with this
observation that is widely made in science.

A Yes, it is. It's a conclusion, once you realize
that we have artificially removed intelligent cause from one
branch of science, it's welcome in several others, if it were
necessary or we saw evidence of intelligence in another branch of
science, it would be welcomed overnight, but it is artificially
removed from biology.

Q What does intelligent design tell us about who
the creator or designer might be?

A Well, first of all, intelligent design can't
tell us anything beyond intelligence. If you accept the well
accepted principles of analogical thinking without which science
could not be done, the principles that were given to us by David
Hume, philosopher David Hume, then you realize that science
cannot go from the material realm, from observations of the
material, to the supernatural. And this is -- this is an integral
part of the teachings of David Hume that have been -- that were
accepted into science at that time, the stage that it was, and
have been a part of it ever since.

Q Can you tell us if this, this intelligence is a
natural or supernatural event?

A Creation science was defined in the mid '80s by
the National Academy of Sciences in their booklet, Science and
Creationism, a View from the National Academy, as entailing three
teachings. Number one, that creation occurred sometime between
six and ten thousand years ago; number two, that it was a
supernatural creation, simultaneously creating all of the life
forms independently of each other, including man; and number
three, invoking flood geology or catastrophism to explain the
order of the fossils in the fossil record.

Q Now, does creation science begin, is it premised
upon scientific observation or upon something else?

A It begins with the observation of the complexity
of the information in the genome.

THE COURT: Well, I'm going to allow some leading
in the interest of time. But I want to say that -- so I'll
overrule the objection. But I will say I'm not sure, counsel,
with all appropriate and due respect to your efforts to be as
comprehensive as possible, under Rule 24, I'm not sure how this
line of questioning helps me. Enlighten me.

MR. BOYLE: Your Honor, we have to show -- as the
Court is aware, there are several things we have to show, one of
which is the interest in the litigation that is not being
protected.

THE COURT: Well, you have to show timeliness, you
have to show the significant legal interest.

THE COURT: You have to show the impairment of that
interest, and you have to show the lack of adequate
representation by existing parties, at least as -- if we're as of
right, which it appears that we are at least by this line of
questioning.

So I'd ask you to move through this and try to get
to the other parts. I am particularly interested in timeliness,
I'm interested in the area of lack of adequate representation by
the existing parties as well.

So -- and I don't -- I don't want to drastically
limit your case. You have to do what you have to do, I recognize,
but you should move through this.

MR. BOYLE: I understand, Your Honor. I think this
does go to the adequacy of representation and the different
interests between the school board.

MR. BOYLE: In essence we've heard that the
plaintiffs are alleging that the school board had a creation
science policy. Apparently there are press reports where the
terms creationism and religion were used to justify the policy.
And that, we will submit, is the interest that the defendants
have to defend in this particular case. Our interest is more
academic and more a financial interest considering intelligent
design.

THE COURT: And I don't think that -- a great deal
of that does not seem to be controverted. And I'm not sure that
there is a strenuous contention that some sales of a text could
be lost.

Now, there is an issue as to the number, and I
recognize we're going to hear cross examination, and there will
be points undoubtedly made as to that. But as to your line of
questioning that gets into the broader principles of intelligent
design and the subject of the Pandas and People, I think the
Court is pretty familiar with a lot of these areas. And I'm just
saying, I think you can move through and build the record you
think you need to, but I'm --

Q What are the differences between creation
science and intelligent design?

A Well, creation science, the driving impetus is
to affirm the genesis narrative in the Bible. And the driving
impetus in intelligent design begins with observation,
observation of the genome, and the obvious product of
intelligence that we see in living systems. So . . .

Q Are there prominent scientists who agree with
the theory of intelligent design?

Q Prominent scientists who are not Christians, if
I didn't make that clear.

A Dr. Fred Hoyle and Chandra Wickramasinghe
published together an article in the journal, a technical journal
called Icarus. The title of the article was Directed Panspermia.
And they believe that the evidence for intelligence, for
intelligent origin of life is so great that they wagered a
scenario where some intelligent civilization in deep space sent
sophisticated rocketry to the earth loaded with life spores,
seeded the earth, and has been watching like a laboratory
experiment.

It -- and then Dr. Hoyle, who is one of the
co-authors of one of the three major theories of the origin of
the universe in the last century, it's since been eliminated from
the running, but in -- and he is a Nobel prize winner, wrote a
book entitled the Intelligent Universe. And it does say what we
-- what it sounds like. He is showing that we cannot explain the
genome apart from intelligence.

A Yes, I did. I called Mr. Thompson, Richard
Thompson, on April 15. I was concerned that we had a few things
that he may not have, that are not widely circulated among
intelligent design scientists and educators, and I wanted to
offer them to him if he thought they would be useful.

Q Now, when you called on April 15th, was that
because of some recent knowledge you gained of what was going
on?

A It was because my -- our academic editor, Dr.
William Dembski, told me that he had been in touch with Mr.
Thompson. And we felt that it was strange and, frankly, very
uncomfortable that we had not had contact with the Dover School
Board, we had not had contact with the Thomas More Law Center,
and yet we were the publishers of the book, the producers of the
book, we knew more about the book than anybody. And so, you know,
I did -- I did ask Dr. Dembski for the phone number, and he
e-mailed Mr. Thompson and introduced me, and then I called
him.

Q After that, were you ever able to talk to the
Thomas More Law Center or anybody there about the theory of
intelligent design?

Q With respect to school board policies and the
use of your book, who do you market your book to?

A Well, we have from the beginning marketed our
book to teachers. That's the one thing that unifies a lot of
different marketing methodologies. For example, we exhibit the
book at science and education conventions. We place space ads in
education journals.

Now, we're not doing all of these things
simultaneously, but over the years we've done that. We've done
direct mail to biology teachers. We have been building a network
of independent reps who go and they contact directly with
individual science teachers.

A Well, we market to science teachers because
they're the people that have the expert -- the training and
expertise to evaluate the book. And we don't believe that if the
book is handed down from above, from an authority structure like
a school board, that there's going to be a positive educational
experience, especially if the school board requires that the
teacher or teachers use the book.

And so we've always counselled -- when we get a
call from a school board member, we'd always counsel them to turn
the book over to the teacher, just hand it casually, don't say,
you know, I really think this is a great book or whatever, just
give it to the teacher, the science teacher, and just say, you
know, I would like to know what you think of it, and with your
background and expertise, I would like, you know, I would like to
hear about that.

Q When -- has there ever been a time when you have
refused to send a book to a school district because of a school
board policy?

A Yes, there have been two notable instances where
the school board was ready, was poised to pass a resolution
requiring the use Of Pandas and People, one in Louisville, Ohio,
and one right up the road from us in Plano, Texas. And because in
Louisville there was a confusion between creation science and
intelligent design, and they wanted to get the school board to
pass a policy that it would be used, we wrote them a letter and
said we will not sell you copies Of Pandas and People. We did the
same thing in the case of a Plano school district.

Q Getting back to your conversations and your
contact with Thomas More, after that conversation with Richard
Thompson in April of this year.

A That was on April 21st, I got three phone calls
that day. One was from Bill Dembski, our academic editor, and he
said that you are going to be served a subpoena. And I got a call
from Pepper Hamilton, and they said, you know, will you process a
subpoena if it's sent by mail or do you need to be served. And my
reply was that I'll take it either way, but I'll go to prison
before I turn this book over to you -- referring to the Design of
Life. And then the third call was from Thomas More, from Patrick
Gillen.

A Yes, there were -- there were very, very brief
contacts, but not anything of the nature of defending our
interests or what are your concerns, what are your interests, you
know, what is your exposure, nothing like that.

Q Okay. After you heard about the subpoena, when
was the subpoena served upon you?

A Well, the subpoena -- I'm still confused about
that because I was told that effectively the day the phone call
was made that's when the clock started ticking on the subpoena.
But I didn't -- I was on my way out of town within a few days of
the 21st, and I was unable to cancel my trip. So I spent the
first two or three days of my trip actually trying to locate an
attorney. And then this -- and the subpoena was delivered to our
office on the 28th of April, and then I saw it when I returned to
town another day or two later.

I think, you know, that we are -- we are certainly
the primary stakeholder in this, and we are -- our interests are
-- you know, as a nonparty to the lawsuit, our interests are
highly at risk, at least. And just the economic part of this,
much less the reputation among potential authors in the future,
this would cost us a great deal.

Q Do you have any confidence that the Thomas More
Law Center is representing your interests in this matter?

A Yes. Dr. William Dembski is our academic editor,
and he's the editor of the book The Design of Life, and one of
the new -- the three new co-authors.

Q And how would you describe Dr. Dembski's
position in the intelligent design movement?

A Well, there are many people that would say that
he is the premiere intelligent design scientist at this point.
Some would say Michael Behe is, who is another one of our
co-authors. But Dr. Dembski is prolific, he's produced -- either
edited or authored, roughly ten books since the intelligent
design thing got underway. He debated -- he and Behe debated two
Darwinists at the American Museum of Natural History. He
published a book with Cambridge University Press. He travels
really around the world speaking and debating.

Q And how does that, his lack of involvement in
this case, affect your interest if at all?

A Well, he's the leading authority and expert on
the book. And so he would be tremendously important to making the
points, answering the allegations, establishing the book,
establishing its scientific status and so forth.

A Dr. Campbell is a professor at Memphis State, I
believe, of the -- his area is the science -- I'm sorry, the
rhetoric of science. And he's very very conversant with the
intelligent design/Darwinist debate.

A He's -- he's a leading authority, and so, yes, I
mean it puts us in greater jeopardy. We -- we need the scientists
that, you know, are willing to be expert witnesses.

You have to understand that there are many
scientists who have tremendous credentials who have no stomach
for this kind of thing. And we don't have access to everybody
that, you know, that has -- that believes in intelligent design
or has done great things in science.

So yes, this is an extremely disappointing loss,
it's invaluable to us.

Q Now, the plaintiffs in their lawsuit have
alleged that this policy of Dover's had a religious agenda or
motive. Do you have a religious agenda or motive for the book
Pandas and People?

Q Do you understand that in the -- in one of the
pleadings that the Foundation submitted in support of its
intervention that it represented that certain experts requested
private representation by counsel for FTE?

Q Yes. The request that these three experts made
for representation by counsel for the FTE was not agreed with by
counsel for the defendants, Thomas More, correct?

A Are you saying that these three are named in the
document you quoted?

Q What I'm reading from is the reply brief that
the Foundation submitted in support of intervention. It says,
"When certain experts requested private representation by counsel
for FTE, defendants, paren, amazingly fired several experts
because they insisted on that representation."

Q Okay. And so therefore you weren't aware of
whether it would be, for example, in the curriculum -- in the
classroom or in the library?

A We -- before they did this, before the press
reports came out reporting what they had done, we were not aware
that the book was even being considered in Dover.

Q And is that sometimes the case for other school
districts, that you're not aware that the book is being
purchased?

A It has been the case on some occasions, it
certainly is the extraordinary. But I'm certain that over the
years that's happened.

Q And is it sometimes the case that even when you
are aware of who purchased it, you don't know how the book is
going to be used in the school district?

A We try and contact the school district if we
know there is an interest or they're making a purchase or they've
made a purchase, to find out, you know, what their intentions
are. We know that having talked to as many teachers and
administrators in schools as we have, we might be able to help
them.

Q And am I correct that, for example, one of the
on-line vendors that the book is sold through is a home -- a
vendor who provides support to people who are home schooling
their children?

Q Just to make sure I understand your testimony on
direct, your estimate of the loss of profits that could occur
depending on how this Court rules, is based on the amount of
inventory that you have of Pandas, the books you have?

A I think at that point we're talking about line
ten, I said, from what I saw in press reports I wasn't clear --
it wasn't clear to me that the school board knew the difference
between creation science and intelligent design, but they knew --
but you knew the book involved was Pandas, didn't you.

So I don't know exactly when I became aware that
Pandas was involved. I also don't know to this point, I've heard
conflicting information as to whether Pandas is -- has been --
the policy selected Pandas for use in the classroom or put copies
in the library.

Q And if I understand the reason you're
intervening here is because you think FTE's economic interests
are threatened by the position that the plaintiffs are urging the
Court to take, is that right?

A Yes, among others things. I think also our --
our interests in terms of publishing and being a participant in
the process of education and science are also at risk here.

Q And the reason you think those interests are at
issue is because plaintiffs are arguing that intelligent design
is a religious concept not a scientific concept?

A Yes, that's right, that is a -- that is a very
large concern to us because that would cause the market for the
book to evaporate.

Q And another concern you've expressed that would
affect your economic interest and the educational interest is
that plaintiffs are equating intelligent design to creationism or
creation science, is that right?

Q And if I understand your briefs and your
testimony today, you weren't aware of that until the Foundation
became involved in the litigation through the subpoenas.

A That's really what made it clear to us that we
were in the crosshairs.

Q Now, you would agree that if you had read the
complaint you would have realized those were the plaintiff's
contentions?

A Yes, I would have if I had read the complaint. I
didn't even know that a lawsuit involved a complaint that was
public and accessible.

Q But you agree that having now looked through the
complaint, those propositions that you're concerned about that
intelligent design is a religious concept not a scientific
concept, and that intelligent design is akin to creationism,
those are apparent in the complaint, correct?

Q Mr. Buell, what I've given you is an article in
the New York Times dated January 16, 2005, or a copy that was
printed from the Internet entitled, An Alternative to Evolution
Splits a Pennsylvania Town.

If you could turn to the second page of the
document, and look at the second full paragraph.

Q Do you see there it says, in mid December 11
local parents represented by the American Civil Liberties Union
and Americans United for Separation of Church and State sued the
school board contending that discussing intelligent design is a
way to hoist religion on their children; do you see that?

By the way, if I might add, we did not read
everything that came to us in this regard because over the years
we have seen certainly thousands of articles, and they all follow
a very similar scheme, schema. So I can tell you that I saw this
article. I can tell you also that I didn't read it. I probably
scanned down the first, you know, several paragraphs.

Q Now, you testified today that the Foundation
does not have a religious agenda or motive, correct?

Q Mr. Buell, do you recognize the document I've
given you, which is the second exhibit today, a Form 990, Return
of Organization Exempt from Income Tax for 2003 to be a document
filed by the Foundation?

A This statement was -- we had a new CP A do our
990 and audit we had never used before. He wasn't even from the
state of Texas. He was not familiar with us. You know, I neither
saw that statement, nobody gave him that information, and I
didn't -- I certainly didn't approve it.

Q Okay. So -- and so this statement that's filed
with the IRS so that the Foundation can be exempt from paying
income tax is false; is that what you're saying?

A It was boilerplate that the attorney that was
helping us become established used. I felt that it was
inappropriate. He said we need to be clear in identifying
yourself as having a genuine nonprofit purpose, and so the
language that originated with me is the phrase, "but is not
limited to."

Q Mr. Buell, this document is something that was
pulled off the Internet, but you recognize it as a purpose
statement for the Foundation that used to be distributed?

A Yes. I don't actually -- I don't actually
remember this statement, but it's obviously an FTE statement.

Q And in this statement it says, "The Foundation
for Thought and Ethics has been established to introduce Biblical
perspective into the mainstream of America's humanistic society,
confronting the secular thought of modern man with the truth of
God's word."

Q And then it talks about how there would be a
public -- a textbook published which will present the scientific
evidence for creation side by side with evolution.

A Yes, and this, by the way, was written before --
I can just tell from the language, this was very early, before
the National Academy defined the term creation science. So the
terms of art that are in play today were not in existence at that
time.

Q And at the bottom of the first page, what it
says is, "Our commitment is to see the monopoly of naturalistic
curriculum in the schools broken. Presently school curriculum
reflects a deep hostility to traditional Christian views and
values, and indoctrinates students to this mindset through subtle
but persuasive arguments."

Q And your view one of the areas of curriculum
that is a primary offender in terms of showing hostility to
Christian views and values is the subject of biology, isn't that
right?

A Yes, that's right. I think that anybody should
oppose this from an education -- should oppose that stature or
the status of education being lopsided, just from an educational
standpoint.

Q Because the teaching of biology you consider to
show a deep hostility to traditional Christian views and
values?

A I think that the teaching of biology is done
with an artificial removal of biology from the sciences which can
legitimately entertain intelligent cause. I think that is an
artificial truncation of science.

Q And then if you go over to the next page, in the
first paragraph, you blame -- you blame the current deplorable
condition of our schools resulting in large part in denying the
dignity of man created in God's image, correct?

A That's right. Many teachers tell me they have
difficulty with -- in the classroom with student behavior because
there is no -- there's no sense of respect or accountability to
the teacher, to the school, or to authority.

Q And effectively what you're advocating in this
fundraising letter is that the FTE's publications are an antidote
or a partial antidote to these problems of hostility to Christian
views and the cultural decay in our schools, isn't that
right?

A I would say that they're not an antidote to the
hostility to Christian views, but they are an antidote to the
hostility toward positive character qualities and moral traits
and a positive outlook and philosophy.

Q And turning to the front page, there is some
mention here of polls showing that three quarters of the public
want creation taught in schools, and it's about half way down the
page, and another poll about biology teachers. Do you see
that?

Q Now, this first page talks about a decision out
of the United States Fifth Circuit Court of Appeals on the
Louisiana Balanced Treatment Act that was on appeal to the United
States Supreme Court, correct?

Q And then if you go down to the bottom of the
page, you have some projections of how this book, then called
Biology and Origins, would do if the Supreme Court reversed the
decision and did not allow state mandated teaching of creation,
you said modest expectations, correct?

Q If you look in the second paragraph, about half
way down it says, "Evolution is the theory that natural causes
are adequate to account for everything in the natural world,
including life itself. Creation is the theory that certain
phenomena must be explained by intelligent causes. In this book
we counterpose these two theories about life's origin."

A Before the National Academy of Sciences gave it
the specific definition, which I quoted earlier, and that
definition was affirmed by the U.S. Supreme Court, it did not
carry that meaning.

Creation, in general, was a word used in -- even
in scientific literature, for centuries. And then when you say a
creationist, prior to those terms of art, the origin of those
terms of art, you were just talking about somebody who holds to a
general view of creation, not -- this is not a reference to
creation scientists or, you know, a specified viewpoint.

Q So this is the term in operation before the
court defined it and before the NAS defined it?

A A creationist in that sense would be like an
evolutionist. I mean an evolutionist is not a synonym for
evolution science. It's one who adheres to creation in that broad
-- you know, in a broad sense, not defined as later it was
defined by the National Academy.

Q So, for example, Henry Morris is just holding
himself out as a creationist, right?

A Yes. What we're talking about here is a choice
of words when the vocabulary was not as precise as it is now. And
I offer as an example of why you can count on that, is because
before we ever started this book at all, we published a book that
has been acknowledged as one of the top books ever published on
the origin of life, published by a secular publisher, outsold the
previously best selling book by McGraw-Hill. And, you know, so it
would be difficult for me to imagine, having achieved something
like that that receives accolades from the highest levels of
science, and turn around and talk about creation science, and try
and publish a track or a book or, you know, some kind of a
subterfuge promoting creation science.

Q Actually in this version of the book it
describes who creationists are, doesn't it, if you look at pages
22 and 23 and 24. It says there's different types of
creationist's literature. There are older creationists, younger
creationists, agnostic creationists, right?

A Yes. We were trying to give some articulation to
the breadth of what that term means.

Q And then if you could turn back to page 22, you
explain that "Creation is the theory that various forms of life
began abruptly, with their distinctive features already intact:
Fish with fins and scales, birds with feathers and wings, mammals
with fur and mammary glands."

Q Says, "Intelligent design means that various
forms of life began abruptly through an intelligent agency, with
their distinctive features already intact: Fish with fins and
scales, birds with feathers, beaks and wings, et cetera."

Q So that's pretty much the exact same sentence
substituting creation for intelligent design, isn't that
right?

A The reason that you find the similarity in the
two passages is because this obviously was at a time when we were
developing the manuscript. We had not chosen the term
"intelligent design" at that point. We were trying to -- this was
just a place holder term until we came to grips with which of the
plausible two or three terms that are in scientific literature we
would settle on. And that was the last thing we did before the
book was revise -- I mean was sent to the publisher.

Q It was creation, creation, creation until the
end and then it was intelligent design.

MR. BOYLE: Your Honor, I'm going to object to this
line of questioning based upon relevance.

As the Court will recall, we attempted to describe
the difference between intelligent design and creation science,
and the Court indicated that that really wasn't the issue for
today's hearing; or at least that was my understanding, and ask
that we move along.

MR. ROTHSCHILD: First of all, I'm finishing up,
Your Honor, in case you're concerned about that. But first of
all, that was still a substantial subject of the direct
testimony. And on the issue of timeliness and the interest, the
Foundation has come in here and claiming that they were surprised
to find that plaintiffs would characterize intelligent design as
being akin to creationism, that they are surprised that we have
suggested that it is a religious proposition that being promoted
for religious reasons. And the evidence that has been introduced
here, particularly relevant given the nature of direct, clearly
addresses that point.

THE COURT: Well, I'll overrule the objection. I'm
happy to hear that you're nearing an end. I think you've made
your point. I'll allow the answer to the question, but I think
you're going to run the risk soon of being in this area too long.
And you're also going to run the risk of lapsing over excessively
into your case in chief. And I know you don't want to do that,
and I don't want you to do that. So let's move through this. And
I'll tell you that we can sit today until five o'clock. I was
hoping that we wouldn't have to, but we may have to.

Do you have another witness?

MR. BOYLE: I don't have another witness, Your
Honor, but there are some points I would like to clarify on
redirect.

THE COURT: Well, particularly if and -- and you
certainly will have that right, and to the extent that there's a
question that hasn't been asked yet, and I can't imagine what
that would be, but we're going to give Mr. Gillen an opportunity
to ask questions as he needs to have as well, so let's wrap it
up.

We'll overrule the objection. And I'm not sure. Do
you remember the question, sir?

THE WITNESS: That misrepresents the actual fact of
the matter because creationism took on a specialized meaning
while the book was being developed.

There was a new position that was being determined
through dense extensive interaction between scientists and
philosophy science. We knew that it was fundamentally different
from creation science. And then when the National Academy came
out with their definition, we knew that we had to choose a term
that would distinguish between the two. And as evidence of what
I'm saying I offer you this, that we, on our own dime, flew to
Little Rock, Arkansas, after McClain went down, and tried to
appeal to the Attorney General not to appeal the verdict, because
we felt that it was wrong -- wrong minded. And the same is true
before the case with Edwards v. Aguillard, we flew to Atlanta, we
met with the attorney, the lead attorney. We tried to persuade
him to drop creation science. And it is true that among -- in the
literature, intelligent design was a term that appeared now and
then.

These terms go back to a previous century. E. J.
Ambrose, a British cell biologist and cancer researcher, used the
term creative intelligence. That was one of the things that we
thought about. We picked this term.

We knew well before we were -- I don't know, maybe
a year before we were through with the manuscript, editing it,
that we would not use the term that had been assigned while we
were doing the book with specialized terminology, and now you're
coming now and saying that this terminology as it applies today
is what we had in mind. That just is not the fact.

Q And he actually said in that affidavit those are
the only two explanations for origins of life, evolution and
creation science.

A Dr. Kenyon changed his view after he interacted
with us. We went to Davis and Kenyon for the nuts and bolts of
science in Davis' case of biology, and in Kenyon's case in the
origin of life.

Dr. Thaxton, Charles Thaxton, who was the academic
editor, was the one who had been steeped in the history of
science and philosophy of science and was working out the
framework that -- through which these would be laid out. So we
did not hire Kenyon for his view on creation science.

A Well, yeah, I think two recent examples that are
I think outstanding, one is Dr. Townes, who is the co-discoverer
or the co-inventor, however you want to word it, of the laser. He
received a Nobel prize for it. Dr. Francis Collins, the head of
the human genome project is a Christian. That would be a couple
of good examples.

A No. You know, I will say that they probably were
motivated to do good science because they were -- because they
were Christians, just like I've heard a Jewish talk show host
talk about being motivated by his faith to do well in his
field.

Q Now, on exhibit 5, it's going to bear the tag
exhibit 7 from the deposition, that's in front of you.

A First in press reports, and only then much later
in April did I get any more specific information.

Q Did you understand in January of this year what
the basic parameters of the lawsuit were?

A If you include within that that they were coming
at our interests, no, I did not understand that.

Q Well, that's not my question. Did you understand
that a group of parents had brought suit against a school board
in this case alleging that a particular policy by the school
board that featured the mention of intelligent design, that that
was -- that those parents allege that that was an infringement or
an unconstitutional infringement under the First Amendment?

A I don't think that I recognized it as
specifically as you express it. I recognized --

A Well, because we found out late in the case that
the intention was to take intelligent design back to the Supreme
Court and have it declared to be creation science, and therefore
included in the -- as a religion in the constitutional
prohibition against creation science. And we didn't know until
well on, until April that we were going to be required to turn
over a work in process.

Q Well, you believe that the thrust of the defense
in this case is that? Is that what you're saying?

Q -- or their intentions are, I'm asking you about
the defendant in this case.

You are saying, by your motion, that you don't
think your interests are adequately represented. Now, would you
agree that your goal would be the same as the defendant's goal,
that is, to have the policy of the Dover School Board remain in
place as it's presently cast?

A No, I don't think the Dover School Board policy
is -- I think that is the very thing that we have opposed on the
part of school boards in the past.

A Well, my understanding is that we've been led to
believe in the documents -- and I'm sorry, Your Honor, I couldn't
pinpoint which one, but in the legal documents, that it's the
intention of the ACLU to take intelligent design back to the
Supreme Court and have them declare it to be religion or creation
science or both.

Q So your belief as to what you claim to be an
unprotected interest is based largely upon what you -- what you
think the thrust of the plaintiff's arguments are?

A Yes, but not exclusively, because $525,000 is
more than any of our annual budgets have ever been.

Q I understand that. And I'm not sure that you
understood my question.

Q I guess then I'm interested in understanding why
you don't think your interest can be protected when you're not
sure how many counsel are involved, and because you can't tell me
anything about counsel who are representing the defendants.

A I think, you know, part of the reason is because
we -- we gave rise to this viewpoint. We've worked on it for more
than a quarter of a century. We are intimately connected with and
have worked with the two leading scientists who have provided the
theoretical underpinnings for intelligent design as science.

Q If you were allowed to intervene, would Mr.
Dembski be brought back into this litigation through that
intervention?

Q Do you understand that if Mr. Dembski would be
brought back into this process, that that might lead to that
which you sought to protect before, which is the introduction of
the manuscript of the volume three of which is now, as I
understand it, Design of Life? Do you understand that?

Q And do I understand correctly that -- it appears
to me from what I've seen, that it was Mr. Dembski's removal from
this litigation as an expert witness that appeared to trigger
your desire to intervene, is that correct?

Q Well, what caused you, having known about the
lawsuit since January of '05 and then having known about
certainly Mr. Dembski's involvement for some time prior to your
motion to intervene, what triggered in May of this year your
filing of a motion to intervene?

A Your Honor, I can't be precisely specific, but I
know that it was a combination of what we read when we read the
legal documents. It took me a while to read those documents
because at the same time we were required by the Northern
District of Florida to produce over 25 years of documents, which
our office is less than a thousand square feet. They were in
boxes unmarked, and so we had to bring in workers and supervise
that and be precise about that.

So it was when I could read those -- all of those
legal documents, I saw that we were really in the crosshairs, and
that's why. And we were trying to do everything that was expected
of us.

THE COURT: Thank you. All right. You may step
down, sir. That will conclude the examination.

THE COURT: All right. I'll allow you to make some
closing remarks, if you'd like.

MR. BOYLE: Your Honor, I want to focus upon two
facts at this point in time, and that is the adequacy of the
representation in this particular case, and the timeliness of the
intervention. Let me deal with the timeliness first.

This case was filed late last year. At that point
in time it involved a small school district in central
Pennsylvania.

THE COURT: I'm not sure that that helps me. What I
am interested in is, the suit was filed on December 14th. It's
quite clear now that your client understood that the suit was
filed as early as January of '05. Discovery is closed in the
suit. We're moving inextricably towards a trial at some point in
the late summer/fall -- actually the fall as previously set by
the Court.

I am trying to understand why there was no motion
to intervene prior to the filing of this motion to intervene.

MR. BOYLE: I think there was no movement to
intervene because the press reports did not give the true nature
of the suit or the nature of FTE's involvement in the suit. And
that this was not a matter that affected the FTE at all until
they received a subpoena from this court.

THE COURT: But wasn't Mr. Dembski involved from a
point in time, it seems to me -- and I don't know the exact point
in time -- but at some point after January of '05 Mr. Dembski was
clearly involved as, at least at that time, the defendant's
expert. Mr. Dembski works hand in glove, obviously, with Mr.
Buell and with his not-for-profit.

Are you telling the Court that the only source of
information that your client had was through press accounts?

MR. BOYLE: That's what the testimony I believe
indicates, Your Honor, that --

THE COURT: That strains credulity. I can't believe
that. In a matter that is -- that is this important to your
client, and certainly had some notoriety that transcended simply
the community of Dover, and even Pennsylvania, and it was -- and
Mr. Buell just told me that he understood -- if I understood his
answer correctly, and I think I did -- as early as January he
understood that Of Pandas and People was something that was the
subject, or a subject of the lawsuit.

Now, I am having difficulty understanding what the
trigger point was for the motion to intervene. It looks to me
like the trigger point came after Mr. Dembski was dropped as an
expert. And to me it looks like Mr. Dembski was dropped as an
expert because he didn't want to produce, or because his employer
didn't want to produce the manuscript of The Design of Life. And
it was only after that that I saw the motion to intervene.

MR. BOYLE: Well, I think that we have no reason to
know or no reason to know why Thomas More dropped Mr. Dembski as
an expert.

MR. BOYLE: I think what happened in this case is
there was a policy in Pennsylvania, and I think that that policy
received a variety of news coverage that may or may not have been
accurate around the country. I believe that Mr. Buell saw some of
that news coverage, did not connect the fact that that implicated
FTE's interest that much. And Mr. Buell testified that the school
district policy is not the way they market the book. They have no
interest in a policy that mandates the use of the book.

MR. BOYLE: Well, that's one of the subjects of the
lawsuit. I think the other subject is whether or not intelligent
design is creation science.

I think that the position the plaintiffs take in
this case is there was a mandatory policy under the Lemon test
with a religious purpose. But I think they also in their
complaint clearly equate intelligent design with creation science
under Edwards v. Aguillard, and for that reason alone sort of as
a separate basis the policy should be unconstitutional.

MR. BOYLE: Well, the defendants, though, Your
Honor, have to defend the political policy of the Dover school
board. That's where the defendant's case rises or falls. It's on
that political determination by the Dover school board.

THE COURT: Well, you may say it's a political
policy. It is an explicit policy that calls for something to be
said, as the Court understands it, as a precursor to the biology
curriculum. Now, you call it a political policy. It's a policy.
It's a statement. It's being vigorously defended by the school
district, by, I might say, experienced and accomplished counsel
who have at every turn litigated this case zealously.

Now, tell me what you would do, both before today
and hence forth, that they haven't done?

MR. BOYLE: What we would do, Your Honor, is we
would retain William Dembski and Dr. Campbell as experts in this
case.

THE COURT: Well, and Mr. Dembski would then
reappear in the litigation. And Mr. Buell just said that if Mr.
Dembski's manuscript -- if their manuscript is dragged back into
the mix, that he would rather go to jail than reveal that. So
where does that get me if Mr. Dembski comes back in?

MR. BOYLE: Well, in terms of the production of the
document, I don't know that there's been a ruling on that or the
relevance of that has been determined.

THE COURT: Well, when you put it in an expert
report and you name that as the basis for your expert report,
then you have a problem if you don't want to produce it.

MR. BOYLE: Well, it's a handicap, Your Honor, to
try to litigate the case, a case of intelligent design without
using the foremost experts in the field.

THE COURT: Well, you want to unring a bell, and
I'm not sure that that can be done in the case of Mr. Dembski,
and I think you get into a, be careful what you wish for, it may
come true, if in fact intervention is granted in this case.

MR. BOYLE: If intervention were granted, Your
Honor, we would -- we would take a different tact with respect to
the policy, the Dover policy. Our approach is --

MR. BOYLE: If the case only involved the Dover
policy and not the theory of intelligent design, it would be a
narrow case, but the plaintiffs have taken the view, as I
understand it, that intelligent design is creation science,
irrespective of the policy. And that is where our interest
is.

THE COURT: And how am I going to rule differently
on that if you're in or if you're not in?

MR. BOYLE: Well, because our interest is in
presenting the scientific evidence and the legal arguments in
that case.

MR. BOYLE: I think the defendants are limited to
what -- I think they're limited to the depth of the policy the
board has enacted and what that policy is. I don't think the
Dover policy and intelligent design are synonymous.

THE COURT: Your client just told me he didn't know
how many attorneys were in this mix from the Thomas More Law
Center, he knew very little about the attorneys who were in,
quite obviously. He had a collegial relationship with Thomas
More, but didn't know that much about them. How can you come
before this court and indicate to me that the interests aren't
adequately protected when you can't even tell me about counsel --
not you, but your client?

MR. BOYLE: Well, I think on the flip side of that,
Your Honor, the reason why he can't is because he's never had any
calls from Thomas More. Thomas More has never sought out what his
interest is.

THE COURT: Well, think about what that argument
implies. That is that there is an obligation on the Thomas More
Law Center to, in the midst of their representation of the Dover
school board, make contact with every potentially -- like a class
action suit, every potentially affected entity or person. They
don't have that burden, do they?

MR. BOYLE: I don't think they have that burden to
contact everybody in the universe, but certainly, Your Honor, the
publisher of the book that's at issue would seem to be a primary
person they would contact.

THE COURT: Well, they used Mr. Dembski as their
expert. And it was only when an objection was raised to the
revelation of the transcript, it seems to me, that the twain
separated here.

MR. BOYLE: I think that the twain separated when
Mr. Buell received the subpoena, when he had no notice or no
assistance from Thomas More in how to respond to that subpoena,
when he hired separate counsel at that point in time to protect
his interests, when motions were filed and when the Thomas More
Law Center did not show up in Texas to present --

THE COURT: And I might agree that his interests
diverge as it relates to the disclosure of the manuscript and the
need to keep that confidential; and I completely understand that,
and we were very careful about that in the prior proceedings. And
there's no question that that's the case. But I'm not so sure
that the interests diverge as it gets to the merits of the
lawsuit. All right.

On the issue of timing, even if Mr. Buell and the
Foundation had not sat on their rights in this case, which I feel
very strongly they did, it's too late in this case to bring them
in. We are at the close of discovery, and now what they are
talking about is not simply just participating in trial, but that
experts whose depositions were scheduled and prepared for, would
be brought into the case.

And what is particularly extraordinary about this
is that -- and I don't need to vouch for Mr. Gillen or his firm,
but they're complaining about adequacy of representation because
these experts were removed from the case. But if you look at
their representation in their brief it was because FTE counsel
was going to represent them.

Mr. -- Dr. Meyer has no affiliation with FTE. Mr.
-- Dr. Campbell has no affiliation with FTE. And here is FTE
counsel insisting on representing them in this litigation. They
should not be rewarded by meddling with defendant's case by being
allowed to intervene and then bringing those same experts back in
whose depositions would have to be taken and the preparation
renewed. That's all I have.

I'm struggling with my personal pride because to
some extent I feel like the efforts we made on behalf of the
defendants have been impugned here. But I want to --

THE COURT: Well, to the extent that they have, and
I didn't necessarily see that, that may be an overly sensitive
reaction to it, but I well understand, and my comments should
imply that I understand the zealous representation that you've
provided. And inasmuch as I'm the final arbiter, at least as this
stage, that is well established. But go ahead.

I want to also be fair and make it clear that I
have made it abundantly clear to Mr. Buell that I do not
represent FTE. They are strangers to my defendants. We did not
contact them when we purchased the book because we believed then
and believe now we purchased a science textbook. I see no reason
why we would have to contact them and that's why we didn't.

It's also true that we did in fact have some
feeling of insecurity when the notion of separate counsel was
introduced on behalf of some of the experts based on affiliations
we did not know about, and we did not want to suffer by reason of
those. There was some sense of, we hired experts to serve the
interests of our clients.

This new factor, intervening into the litigation,
gave us reasonable grounds for insecurity concerning the
zealousness with which we could expect that representation. I
just want to make it clear for the record that's why we needed
not to retain those --

MR. GILLEN: Finally, as your comments indicate,
Judge, it is the position of the Dover Area School District, the
defendants in this case, that intelligent design is a scientific
theory. To the extent that that is an issue in this case, we will
fully and fairly and vigorously defend that interest.

All right, that will conclude part two, and the
final part of our hearing this afternoon.

Now, I understand from Liz, counsel, that you had
some concerns about scheduling, and that you might want to
discuss those.

I think what we ought to do, as the hour grows
somewhat late, and it's a legitimate concern, is probably set up
at some appropriate time a scheduling conference call, and then
we can all be heard on scheduling.

I will tell you that -- well, let me ask you first
of all, the sense of the inquiry, as I understood it, was not
that you wanted to delay, it was simply that you wanted to have
some idea of where we go after the start date of the trial; and
that's certainly fair.

It would not be my intention, because I simply
can't, given your recent estimate of the duration of the trial, I
can't go from start to finish in straight days. That wouldn't
work for any of us, I suspect. Everyone is busy and I have other
matters that I have to attend to. So what we'll look at, when we
have a scheduling conference, is to designate certain days.

I am going to do my best to be in Harrisburg for
as many days as I can. However, as Liz may have advised you, it
appears to me that given the expected duration, we simply are not
going to be able to avoid having some trial days in Williamsport.
I'll try to schedule those back to back, and I wouldn't run you
around unnecessarily from one place to the other, and nor do I
want to do that, but we'll work through that.

So I'll, by separate order, schedule a scheduling
conference. And I'll ask you to get your schedules out for that,
and let's try to work through that.

I can't promise that it will be in the next week
or so, but we'll do it in due time and we'll try to get a
schedule so that everybody has a little predictability. It's my
policy that I -- I think that courtesy dictates to counsel,
although this courtesy was not always afforded to me when I was
practicing, but courtesy dictates to counsel that we have some
sense of where we're going so that, particularly for those who
are travelling in, they can see what they need to do.

THE COURT: We'll close the record. We will render
a decision with respect to the intervention matter promptly. I
will render a decision with respect to the motion to quash after
I've had an opportunity to view in camera the documents which
will be submitted, as I understand it, no later than the close of
business next Tuesday.